Mills v Silver [1991] Ch 271, CA
Property Law – Easement – Right of Way – Access to Property – Presumption of lost grant
Facts:
Silver purchased a hill farm which only had one access for vehicles, which was along the track over Mill’s adjourning farm. The previous owner had used this access freely, although not regularly when the track was dry enough. Silver did not often use the track and never sought permission to use the track. He employed a third party to lay stones on the track so it was useable in all weather. Mills sought an injunction.
Issues:
Whether toleration of use was sufficient to prevent the acquisition of a vehicle right of way. Whether the access amounted to trespass entitling Mills to damages.
Held:
The appeal was allowed. In order to show that there was an implied right of way for vehicle access, it was not enough to show that the previous owner’s use of the access to the property had been tolerated by Mills. It had to be shown to have been sufficient to warrant the implication of a lost modern grant by sufficient and open use being clearly established. It was not enough to assume access because Mills had tolerated the use of his land. Silver was entitled to repair the track for use, but not improve it. Improving the track had increased the burden of the servient tenement which had not been authorised, particularly where no prescriptive right existed. Mills was entitled to damages as the unauthorised improvements to the track amounted to trespass.
Updated 20 March 2026
This case summary accurately reflects the decision in Mills v Silver [1991] Ch 271 (CA). The legal principles discussed — prescription by lost modern grant, the requirement for use that is sufficiently open and without permission, and the distinction between repairing and improving a track over which no prescriptive right has yet been established — remain good law. There have been no statutory changes or subsequent Court of Appeal or Supreme Court decisions that have overruled or materially altered the principles set out in this case. Students should note that the law of prescription more broadly continues to be governed by a combination of the doctrine of lost modern grant and the Prescription Act 1832, and that Law Commission reform proposals in this area (most recently addressed in its 2011 report, Making Land Work: Easements, Covenants and Profits à Prendre, Law Com No 327) have not been implemented by Parliament. The article is therefore accurate as a statement of current law, subject to that broader reform context.
